Stephen Mitchell v. Dr. Harold Nemetz

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN MITCHELL,
Plaintiff - Appellant,
v.
DR. HAROLD NEMETZ et al.,
Defendants,
and
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 08-16343
D.C. No. CV-07112-CW
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Submitted December 10, 2009**
San Francisco, California
Before: TASHIMA, GRABER, and BYBEE, Circuit Judges.
Plaintiff appeals (1) the dismissal of his Federal Tort Claims Act ("FTCA")
suit for lack of subject-matter jurisdiction and (2) the denial of leave to file a
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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motion for reconsideration of the dismissal. Reviewing the dismissal de novo,
Erlin v. United States, 364 F.3d 1127, 1130 (9th Cir. 2004), and the denial of leave
for abuse of discretion, Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH &
Co., 571 F.3d 873, 880 (9th Cir. 2009), we affirm.
Plaintiff’s claim accrued no later than September 14, 2004. His counsel’s
letter of that date demonstrated unequivocally that Plaintiff knew of "both his
injury and its cause." United States v. Kubrick, 444 U.S. 111, 120 (1979). He may
have lacked conclusive evidence to prove his claim at that time, but his position
was analogous to that of any plaintiff who knows of an injury, but lacks sufficient
evidence that it was negligently inflicted. Kubrick instructs that the statute of
limitations nevertheless begins to run for such a plaintiff. Id. at 124. Because
Plaintiff’s claim accrued by September 14, 2004, and he did not file an
administrative claim until 2007, the two-year statute of limitations contained in the
FTCA bars his suit. 28 U.S.C. § 2401(b).
The statute of limitations was not tolled by the alleged fraudulent
concealment. Plaintiff had actual knowledge of his injury by September 14, 2004,
even if the dentists did not provide his dental records to him on request. Grimmett
v. Brown, 75 F.3d 506, 514 (9th Cir. 1996).
AFFIRMED.

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